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Civil Rights in the Shadow of SlaveryThe Constitution, Common Law, and the Civil Rights Act of 1866$
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George A. Rutherglen

Print publication date: 2012

Print ISBN-13: 9780199739707

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199739707.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 October 2021

Reaffirming the Revived Act

Reaffirming the Revived Act

Extension, Reconsideration, and Recodification

(p.144) 8 Reaffirming the Revived Act
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

The revival of the 1866 Act in Jones v. Alfred H. Mayer Co. had momentous implications. In theory, it made the whole range of rights protected by the act applicable to private discrimination, while in practice, it resulted in the deployment of common law remedies and in particular, damages to claims for employment discrimination. This seemingly technical innovation brought the litigation of these claims much closer to ordinary tort claims, with large monetary awards available to plaintiffs for the first time and compensation of their attorneys more closely resembling a contingent fee. The Supreme Court quickly realized the implications of the decision in Jones and sought to restrict the scope of the statute in various ways. Congress, however, stepped in at this point to confirm the broad scope of the act and to extend the remedy for damages to other claims of discrimination, based on religion, sex, and disability. In this manner, the Civil Rights Act of 1991 brought up to date the nation's earliest civil rights act.

Keywords:   private discrimination, damages, common law remedies, Civil Rights Act of 1991, sex discrimination, tort claims

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